' TANVIR BASHIR ANSARI, J.--- The appellant namely Abdul Ghafoor was tried under sections 392/458/411, P.P.C. By the learned Judge, Special Court for Suppression of Terrorist Activities, Bahawalpur Division, Bahawalpur who vide his judgment, dated 31-1-2001 convicted and sentenced the appellant as under:-- Under section 458, P.P.C.
' 4 years' R.I. And a fine of Rs,20,000 or in default thereof to further undergo 6 months' S.I.
Under section 392, P.P.C.
' 4 years' R.I. And a fine of Rs,20,000 or in default thereof to further undergo 6 months' S.I.
' All the sentences were ordered to run concurrently. The benefit of section 382-B, Cr.P.C. Was also given to him. He was acquitted of the charge under section 411, P.P.C.
2. The case of the prosecution is that on the night 26/27-3-1993, P.W.1 Abdul Aziz Khan complainant alongwith his brother Elahi Bakhsh Khan P.W.2, Wahid Bakhsh Muhammad Hashim P.W.3, Muhammad Sadiq and Rehmat Ullah was present at his Dera situated in village Mouza Dandan Oot of Tehsil Liaquatpur. At about 10-00 p.m. Three persons trespassed into his Dera. Two of them were carrying kalashnikovs and the third one was armed with a pistol. They made the complainant and other persons to have their hands up and thereafter threatening with lethal weapons, deprived the complainant, P:W.2, P.W.3, Muhammad Sadiq, Khadim Hussain and Dr. Rehmat Ullah (given up P.Ws.) of their amounts i,e, Rs,100, 100, 800, 6,976, 100 and 900 respectively. They further deprived Elahi Bakhsh Khan, Muhammad Hashim and Dr. Rehmat Ullah of their wrist watches and the driving licences. Except the complainant and his brother Elahi Bakhsh, all others were confined in a bath room by bolting it from outside. The complainant and his brother were then forced to lead the accused to the house of complainant where the culprits armed with kalashnikovs deprived the womanfolk of the complainant of their ornaments and hard cash lying there while the culprits armed with a pistol kept on standing outside the house. They confined the inmates of the house in a room and then alongwith the complainant proceeded to the house of Irshad Ahmad and there too, they deprived the womanfolk of their ornaments and hard cash lying there. All the culprits were open faced and thereafter made good their escape.
3. F.I.R. No,53 of 1993 was registered on 27-3-1993 at Police Station Taranda Muhammad Panah upon the complaint of Abdul Aziz Khan. Although, none of the accused was named in the F.I.R., yet each was sufficiently described therein. During investigation, stolen articles were recovered from Muhammad Ramzan, Abdul Qadir, Ameer Mai, Ghulam Hassan, Muhammad Ajmal, Allah Ditta, Meraj Mai, Anwar Mai, Kori Mai and Fida Hussain. Abdul Ghafoor appellant was arrested on 19-7- 1994 and was duly identified in an identification parade.
4. 11 persons namely Abdul Ghafoor alias Ghafoori, Muhammad Ramzan, Abdul Qadir, Ameer Mai, Ghulam Hassan, Muhammad Ajmal, Allah Ditta, Meraj Mai, Anwar Mai, Kori Mai and Fida Hussain were charge-sheeted on 12-5-1998 under sections 392/458/411, P.P.C., to which, they pleaded not guilty and claimed to be tried. On 12-5-1998, on the application of the complainant, 10 persons named above except Abdul Ghafoor alias Ghafoori were acquitted of the charge under section 265-K, Cr.P.C. The present appellant was left alone to face the trial of this case.
5. In support of its case, the prosecution examined as many as 7 witnesses comprising of P.W.1 Abdul Aziz Khan, P.W.2 Sarwar Elahi Bakhsh Khan, P.W.3 Muhammad Hashim, P.W.4 Jam Bashir Ahmad, Naib-Tehsildar, P.W.5 Syed Nawazish Ali, S.-I./S.H.O., P.W.6 Rana Saeed Ahmad, Inspector and P.W.7 Javed Hussain, S.-I.
6. P.W.1, P.W.2 and P.W.3 have fully corroborated the prosecution case in all detail. These witnesses have not been cross-examined upon the factum of occurrence or the manner in which the occurrence was stated to have taken place. They are also witnesses of identification parade who had identified the appellant/accused during the identification parade and had also specified the role of the appellant. The cross-examination was confined to the proceedings of identification parade and regarding the fact that no recovery was made from the accused.
7. P.W.5 Nawazish Ali, S.-I./S.H.O. Recorded the F.1.R. Exh.P.A. And prepared the site plan vide Exh.p.A./1.
On 21-5-1993, he arrested Muhammad Ramzan, Ghulam Hassan, Muhammad Ajmal, Allah Ditta, Meraj Mie, Anwar Mie, Kori Mie, Abdul Qadir and Amir Mie and recovered from them stolen gold ornaments which were secured vide memos. Exhs . P.C., P. D. , P. E. , P.F., P.G. , P. H. , P. J . , P.K. And P.L.
And prepared site plans vide Exh.P.C./1 and Exh.P.D./1. On 2-7-1993, Fida Hussain also led to the recovery of stolen articles vide memo. Exh. P. N.
8. Rana Saeed Ahmad, Inspector P.W.6 went to the appellant to judicial lock-up on 21-7-1994 where the identification parade was held on 24-7-1994. P.W.4 Jam Bashir Ahmad, the then Naib-Tehsildar conducted the identification parade within judicial lock-up, Liaquatpur on 24-7-1994 where the appellant was mixed up with other persons of the jail. Thereafter, P.Ws. Elahi Bakhsh, Khadim Hussain, Nazar Muhammad and Abdul Aziz Khan were called who duly identified the appellant being the person who was armed with a pistol at the time of occurrence and had deprived them of their valuables.
9. The appellant in his statement under section 342, Cr.P.C. Refuted the prosecution allegations levelled against him and pleaded his innocence. He maintained that he has been involved due to political enmity. However, he did not get himself examined on oath nor led any defence evidence.
10. The learned trial Judge believing the prosecution evidence, convicted and sentenced the appellant as indicated above.
11. Sh. Mehboob Alam, Advocate for the appellant, Mr. Saleem Nawaz Abbasi, A.A.-G. For the State and Mr. Shamim Ahmad Khan, Advocate for the complainant have been heard and the record has been perused with their assistance.
12. The impugned judgment has been challenged mainly on the ground that the identification parade was not conducted in accordance with law. It was contended that the identifying witnesses were allowed opportunity to see the accused before the identification parade and that such proceedings were sham in nature. It was also contended that in the absence of any other prosecution evidence, the appellant could not have been convicted on the basis of the proceedings of the identification parade.
13. We have closely examined the evidence on the record. Abdul Aziz complainant appeared as P.W.1 and has given the details of the occurrence. He specifically stated having identified the appellant as the accused who was armed with a pistol, who had searched the complainant and others and who had removed cash and others articles mentioned by him in his statement. He further specified the role of the appellant to be the accused who stood guard when the other two accused went into the house of the complainant and committed dacoity. In his cross-examination, he has not been confronted regarding the occurrence or the manner in which the occurrence was stated to have taken place. The entire emphasis was upon the proceedings of the identification parade. Nothing was elicited in cross-examination which could detract from his statement. Similar statements were made by Sardar Elahi Bakhsh P.W.2 and Muhammad Hashim P.W.3 and the same trend of cross-examination was adopted in respect of these prosecution witnesses. P.W.4 Jam Bashir Ahmad, Naib-Tehsildar conducted the proceedings of the identification parade. A perusal of the statements of P.W.1, P.W.2, P.W.3 and P.W.4 indicate that the identification proceedings were conducted strictly in accordance with law and procedure. The contention on behalf of the appellant that he was shown to the identifying witnesses before the actual identification parade is not borne out from the record and the learned trial Judge has rightly rejected the objection to the said proceedings. The appellant was mixed up in a group of number of other unconnected accused persons and the identifying witnesses were called in one at a time to make the identification. It is also borne out from the record that once a witness had identified the accused, he was not allowed to meet the incoming witnesses. It also appears from the statement of P.W.4 that the order and the row in which the accused was placed was also altered before the advent of the each identifying witness. It is also noticed that each identifying witness had particularly ascribed the specific role to the appellant.
14. The prosecution had succeeded in proving the manner and mode B of occurrence. All the stolen articles were later recovered by Syed Nawazish Ali, S.-I./S.H.O. P.W.5 from 10 accused who were charge-sheeted. At the instance of the complainant, all the said accused was acquitted of the offence under section 265-K, Cr.P.C.
15. There seems to be no mala fide intent or motive of the complainant to have falsely implicated the accused. Had this been the case, the accused would have been nominated in the F.I.R. In the first place. The appellant/accused was arrested on 19-7-1994 and it was soon thereafter that the identification parade was held by P.W.4 on 24-7-1994. The witnesses of identification had identified the accused unhesitatingly and without any reservations.
On the other hand, the reason stated by the appellant in his statement under section 342, Cr.P.C.
That he has been implicated on account of political enmity is not supported by any material on the record nor is believable under the circumstances of the case.
16. The contention of the learned counsel for the appellant that the appellant could not be convicted solely on the basis of the identification parade has no force. Once it is established that the occurrence did take place, there is nothing unlawful for the prosecution to prove the guilt o the accused through a validly held identification proceedings. The appellant has been identified by as many as three eye-witnesses and no exception can be taken to such procedure.
17. After having considered all the aspects of the case, we find that there is no merit in this criminal appeal which is hereby dismissed.